Challenges in International Humanitarian Law in the Contemporary World

    International Humanitarian Law (also known as IHL) is the branch of public international law which deals with the conduct of armed conflict. This branch of international law seeks to create a balance between two core principles- the principle of humanity and the principle of military necessity[1]. It seeks to ensure that even in times of war where military force is necessary for parties to win, certain fundamental humanitarian principles are not ignored or neglected. To this aim, this branch of law, seeks to regulate the conduct of parties engaged in the armed conflict.

    Introduction:

    The fundamental objective of IHL is to mitigate the effects of war and to ensure that all the parties engaged in such conflict conduct hostilities within specified legal boundaries[2]. The primary purpose of IHL therefore, is to “restrict the means and methods of warfare that parties to a conflict may employ and to ensure the protection and humane treatment of persons who are not, or no longer taking a direct part in the hostilities[3].”

    Therefore, in the field of international humanitarian law there are certain concepts the meaning and contours of which become important if the law is to be applied effectively. This includes definitions of terms like international armed conflicts, non-international armed conflicts, detainees, civilians, combatants, means and methods of warfare to name a few.

    This article will briefly trace the history of IHL and the manner in which the concepts of international and non-international armed conflicts have been defined and interpreted. It will further look into the importance of this distinction, and the implications such distinctions can have for the parties involved.

    Historical Development of Important Concepts of International Humanitarian Law:

    In order to fully understand the scope of IHL, it is crucial in the first instance to look at the philosophical underpinnings of warfare and what constitutes armed conflict under the law, since this law is only in operation when there is an armed conflict[4].

    Historically, war or armed conflicts have been accepted as a part of the human experience. We can even see through the gradual development of international law that in the older times, killing people and usurping others’ territory was considered to be an acceptable endeavor. There are mentions of warfare and armed conflicts for as far back as one can see in history. In fact, there is evidence that shows that the Ancient Greek city states were governed by customary rules of warfare which specified conduct towards prisoners of war and the extent to which defeated forces could be pursued[5].

    A mention of such customary rules and principles of conduct finds mention in Plato’s Republic written around 375 BCE. In this work, Plato emphasizes the importance of “maintaining goodwill between states even in times of armed conflicts[6]”, so that a lasting peace and harmony could be made possible. Even though Plato cautioned against overtly inhumane conduct against citizens of occupied territories and other civilian parties, his definitions did not include those who belonged to other races. He believed such people to be barbarians and thus, not qualified for the amnesty granted to the citizens of Greek origin. However, Plato’s work is one of the earliest iterations of a treatise or set of rules related to the regulation of conduct during armed conflicts[7].

    This practice of granting certain protection to the civilians and other vulnerable parties in an armed conflict has continued through history, even though a codification or universal acceptance of such principles happened only around the 19th century. For instance, there are records of official proclamations granted by sovereigns such as Richard II in 1386, Henry V in 1415 and 1419, Ferdinand of Hungary in 1526, Emperor Maxmillian II in 1570 to name a few[8].

    The modern development of such humanitarian principles, which gave shape to the present regime of international humanitarian law started in the 19th century with the efforts of a businessman from Geneva named Henry Dunant. Dunant was moved and disturbed by the plight of wounded soldiers while he was passing through northern Italy in 1859[9]. After returning to Geneva, he wrote Un souvenir de Solferino (A Memory of Solferino) wherein he gave two main propositions. Firstly, Dunant proposed the establishment of a relief organization which could care for wounded and injured soldiers on the battlefield, and secondly, he suggested that an international agreement should be reached which grants the relief organization the protection of neutrality[10].

    Dunant’s ideas and propositions got a positive reception from different European states, which led to the establishment of the International Committee of the Red Cross in 1863, as well as the adoption of the 1st Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field in 1864[11]. Apart from this, this time period also saw the parallel development of the Lieber Code (Instructions for the Government of Armies of the United States in the Field 1863) in the United States as a response to the atrocities committed during the American Civil War[12].

    Sources of International Humanitarian Law:

    These official instruments and developments in the 19th century marked the beginning of earnest efforts in the field of IHL treaty making. The two world wars of the 20th century provided the international community with the added need to adopt various treaties and instruments[13] which addressed the new issues relating to means and methods of warfare as the military technology developed. This period also saw the extension of the original Geneva Convention to further improve the conditions of wounded soldiers and the adoption of the 1907 Hague Regulations concerning the Laws and Customs of War on Land which laid down fundamental rules with respect to “entitlement to combatant privilege and prisoner of war status, of various means and methods of warfare as well as the protection of inhabitants of occupied territories from inhumane treatment[14]. Out of the 14 instruments adopted at the time, many have become outdated, however, the Regulations concerning the Laws and Customs of War on Land which are annexed to the Hague Convention IV are still some of the elements relevant today. Furthermore, many of the rules laid down therein have been revised by recent IHL treaties, to make them more relevant to the needs of today.

    Other treaties and international agreements were also entered into as their requirement was felt. The most important development in the field of international humanitarian law treaties, came however in 1949, when four Geneva Conventions. These are:

    1. Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field[15]
    2. Geneva Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea[16].
    3. Geneva Convention (III) Relative to the Treatment of Prisoners of War[17].
    4. Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War[18]

    These Conventions continue to form the four foundational pillars of the international humanitarian law. This is because these conventions establish protection for all categories of vulnerable parties in a detailed manner. It also includes a section on Non-international armed conflicts and most importantly, these have been universally ratified, meaning all the states capable of ratifying these treaties have done so[19]. The treaties discussed only provide a glimpse into the densely populated treaty sphere of IHL, and are by no means the sole sources of the field. Other important sources of IHL include, principles of customary international law, ‘the general principles of law recognized by civilized nations, and supplementary sources such as judicial decisions and scholarly contributions[20].

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    International Armed Conflict and Non- International Armed Conflicts:

    As has been mentioned before IHL is the field of international law which applies only in cases where an armed conflict exists. However, even with the immense importance placed on the concept of armed conflict, treaty law on the subject does not provide a “precise and comprehensive definition” of armed conflict[21]. Therefore, the interpretation of this term has mainly been left to State practice, international case laws and legal scholars. In this regard, an Opinion Paper of International Committee of the Red Cross[22] has been one of many scholarly endeavors which has attempted to define the term armed conflict, by interpreting the various articles provided under the relevant treaties.

    International Humanitarian Law recognizes two types of armed conflicts:

    1. International Armed Conflicts between two or more States (also called IAC) and
    2. Non-International Armed Conflict (also called NIAC) between the “government forces and non-governmental armed groups; or between such groups only[23].” A distinction is also made between NIAs as per Article 3 of the Geneva Convention of 1949 and the NIAs falling under the definition laid down in Art 1 of Additional Protocol II[24].

    Article 2 of the Geneva Conventions of 1949 talks about the application of the Convention. It states,

    “In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance[25].”

    Although this definition mentions armed conflicts it does not provide any definition of what such a conflict may entail in order to be covered under the treaty. The interpretation of this term has therefore fallen to the legal scholars and Case laws in the field. From the abovementioned definition, it can be surmised that in its simplest iteration, an armed conflict would mean the use of armed force by one or more State against another State. The Commentary of the Geneva Conventions of 1949 says the following about armed conflicts,

    “any difference arising between two states and leading to the intervention of armed forces is an armed conflict within the meaning of Art 2, even if one of the parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place.”

    Another similar definition of armed conflict was given by the International Criminal Tribunal of former Yugoslavia in the Tadic case[26] wherein they stated that

    an armed conflict exists whenever there is a resort to armed forces between States.”

    Furthermore, the Additional Protocol I further extend the definition of armed conflicts to include instances in which “peoples are fighting against colonial domination, alien occupation or racist regimes in the of their right to self-determination[27].” Therefore, an effort has been to update the definition of armed conflicts to keep in line with the various other instances where force was employed, owing to the changing global political atmosphere.

    Non-International Armed conflict on the other hand, finds mention under treaty law under two crucial legal sources. These include, Art 3 of the Geneva Conventions of 1949 and Art 1 of the Additional Protocol II. Art 3 states that it applies to “armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties.[28]” This provision laid down under Art 3 is further clarified by the wording of Art 1 of the Additional Protocol II, which develops and supplements Art 3 common of the Geneva Conventions of 1949[29]. Art 1 defines NIAC as

    “all armed conflicts…which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this protocol[30].”

    Art 1 further opined that for an armed conflict to qualify as an NIAC it has to fulfil a certain threshold of confrontation, which would distinguish it from other forms of violence such as “internal disturbances and tensions such as riots, isolated and sporadic acts of violence and other acts of a similar nature”[31]. Therefore, the Additional Protocol provides a narrower definition of NIAC than the one given under common Art 3.

    Other sources of interpretation of the concept of IAC and NIAC include judgements given by international tribunals such as the International Criminal Tribunal for former Yugoslavia (ICTY) or the International Criminal Tribunal for Rwanda (ICTR) (although the jurisprudence of these courts is not binding on any other court and therefore cannot have precedential value, it does provide informative guidance[32]).  

    One of the most landmark judgments of ICTY which laid down the distinction between internal disturbances and NIAC is its 1997 judgment of Prosecutor v. Dusko Tadic[33]. Herein, the Court stated that NIAC is said to exist when,

    “there is . . . protracted armed violence between governmental authorities and organized armed groups or between such groups within a State[34].”

    Therefore, this case gave the two fundamental criterions for an armed conflict to be classified as an NIAC- one, the intensity and second, the organization. In other words, for an NIAC to exist, the violence must reach a certain level of intensity and there must be some level of organization on the part of the armed groups agitating against the State[35]. This case was again revisited by the ICTY in Prosecutor v Limaj[36] wherein, the Court reiterated the importance of keeping the Tadic elements as the minimum criterion for the assessment of NIACs.

    Therefore, the intensity and organization of the armed conflict has become two crucial factors for the interpretation of IAC and NIAC.

    The differences between International Armed Conflicts and Non-International Armed Conflicts are not merely cosmetic in nature. They have real and concrete repercussions on the parties involved. For instance, the IACs and NIACs have certain distinct characteristics which makes it crucial that the distinction between them be maintained. These distinctions include, the nature of parties which are involved in the conflict as well as the kinds of laws and jurisdiction of Courts that may apply. If we take the case of an IAC, since the law of jus ad bellum applies in the international sphere, which prohibits the use of force, any act of belligerency or use of force can be presumed to form the intention of creating an IAC and make IHL applicable to the situation[37]. However, within the sovereign territory, the State is granted certain powers, authorizing it to use force for the proper enforcement of law (e.g., criminal law)[38]. Furthermore, any belligerent non-State party engaged in the use of force against the State party would be subject to the criminal laws of the State i.e., authorized use of force[39]. In such a scenario, it becomes much more difficult to identify an armed conflict and the threshold of violence required to trigger the application of NIAC is much higher than that under IAC[40].

    Furthermore, there is also a fear that since, IHL applies equally to both State and non-State parties, application of the law relating to NIAC would amount to granting legitimacy to the non-State belligerent group, giving it recognition or “an international legal personality[41]” which might undermine the sovereignty of the State and encourage such confrontational activities[42].

    Conclusion:

    Therefore, the recognition of an armed conflict as either an IAC or an NIAC, would significantly affect the legal rights and positions of the parties. Furthermore, such legal classification would also alter and supplement the obligations of the parties in their domestic spheres. Additionally, considering the present global scenario, wherein instances of wars or armed conflicts have become rarer between States, and a much more significant rise is seen in the numbers of conflicts which take place within State boundaries, between State and non-State parties, it becomes crucial to properly interpret and determine the contours of the concept of non-international armed conflict.

    References:

    [1] Dr Nils Melzer, International Humanitarian Law: A Comprehensive Introduction, (ICRC, 2019)

    [2] Marco Sassoli, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare, (Edward Elgar Publishing Ltd, UK, 2019)

    [3] Supra note 1.

    [4] Jonathan Crowe and Kylie Weston-Scheuber, Principles of International Humanitarian Law, (Edward Elgar Publishing Ltd, UK, 2013)

    [5] Id.

    [6] Id.

    [7] Id.

    [8] Id.

    [9] Dr Nils Melzer, International Humanitarian Law: A Comprehensive Introduction, (ICRC, 2019)

    [10] Id.

    [11] Id.

    [12] Id.

    [13] For ex. Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (1925); Geneva Convention relative to the Treatment of Prisoners of War (1929).

    [14] Supra note 9.

    [15] 12 August 1949 75 UNTS 31

    [16] 12 August 1949 75 UNTS 85

    [17] 12 August 1949 75 UNTS 135

    [18] 12 August 1949 75 UNTS 287

    [19] Marco Sassoli, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare, 98 (Edward Elgar Publishing Ltd, UK, 2019)

    [20] Jonathan Crowe and Kylie Weston-Scheuber, Principles of International Humanitarian Law, (Edward Elgar Publishing Ltd, UK, 2013)

    [21] Dr Nils Melzer, International Humanitarian Law: A Comprehensive Introduction, (ICRC, 2019)

    [22] International Committee of Red Cross, “How is the term “Armed Conflict” Defined in International Humanitarian Law”, 2008

    [23] International Committee of Red, “How is the term “Armed Conflict” Defined in International Humanitarian Law”, 2008

    [24] Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non- International Armed Conflicts (Protocol II), 8 June 1977

    [25] Geneva Conventions of 1949, Art 2.

    [26] The Prosecutor v Dsuko Tadic IT-94-1-A, 2nd Oct, 1995

    [27] International Committee of Red Cross, “How is the term “Armed Conflict” Defined in International Humanitarian Law”, 2008

    [28] The Genevan Conventions of 12 August 1949, art 3.

    [29] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1977, art 2.

    [30] Additional Protocol II, 1977 art 1 (2).

    [31] Additional Protocol II, art 1 (2)

    [32] Sandeep Avinash Prasanna, “Red Belt, Green Hunt, Gray Law: India’s Naxalite-Maoist Insurgency and the Law of Non-International Armed Conflict” 63 UCLA L. Rev. 486, 2016

    [33] Supra note 26

    [34] Id.

    [35] Supra note 32

    [36] IT-03-66-T, 2005

    [37] Supra note 21

    [38] Id.

    [39] Id.

    [40] Id.

    [41] Zia Akhtar, “Naxalite Rebellion: Disenfranchisement, Ideology and Recognition of a Non-International Armed Conflict”, 8 J. of International Humanitarian Legal Studies, 2017

    [42] Supra note 37. 


    BY APORVA PRAGYA | NALSAR  UNIVERSITY OF LAW , HYDERABAD

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